UVA Frat Has Powerful Legal Case Against Rolling Stone

On Monday, the University of Virginia’s Phi Kappa Psi fraternity announced it would investigate a lawsuit against Rolling Stone after the magazine’s massive “Rape on Campus” expose turned out to have been based completely on a fraudulent story. The fraternity released a statement regarding their potential lawsuit:

After 130 days of living under a cloud of suspicion as a result of reckless reporting by Rolling Stone magazine, today the Virginia Alpha Chapter of Phi Kappa Psi announced plans to pursue all available legal action against the magazine.

The original 9,000-word article, widely praised by the mainstream media for its depth and reportage, accused seven men at the Phi Kappa Psi of allegedly raping a young woman named Jackie at a fraternity party, and further accused the university of ignoring the allegations. The author of the piece, Samantha Erdely, said she had an agenda: she wanted to uncover an example of the supposed rash of brutal rapes on campus. To that end, she told the story of Jackie without bothering to double check even the most basic facts. And the story she told was shocking in the extreme:

When yet another hand clamped over her mouth, Jackie bit it, and the hand became a fist that punched her in the face. “Grab its motherfucking leg,” she heard a voice say. And that’s when Jackie knew she was going to be raped. She remembers every moment of the next three hours of agony, during which, she says, seven men took turns raping her, while two more – her date, Drew, and another man – gave instruction and encouragement.

The report drove UVA to suspend all fraternities on campus, ban Phi Kappa Psi, led to vandalism of the fraternity house complete with graffiti and shattered windows, and did severe damage to the national fraternity and its members.

The story itself, it turned out, was nonsense. Jackie lied. More importantly, Erdely didn’t engage in “basic, even routine journalistic practice” to check the story. Erdely offered this apology – but no apology to Phi Kappa Psi. She stated:

I want to offer my deepest apologies: to Rolling Stone’s readers, to my Rolling Stone editors and colleagues, to the U.V.A. community, and to any victims of sexual assault who may feel fearful as a result of my article.

She then explained that her big mistake was caring too much about alleged rape victims to check their stories, and said that she hoped her “mistakes in reporting this story do not silence the voices of victims that need to be heard.” She did not say anything about the voices of the innocent being protected.

Rolling Stone’s story, ‘A Rape on Campus,’ did nothing to combat sexual violence, and it damaged serious efforts to address the issue. Irresponsible journalism unjustly damaged the reputations of many innocent individuals and the University of Virginia. Rolling Stone falsely accused some University of Virginia students of heinous, criminal acts, and falsely depicted others as indifferent to the suffering of their classmate. The story portrayed university staff members as manipulative and callous toward victims of sexual assault. Such false depictions reinforce the reluctance sexual assault victims already feel about reporting their experience, lest they be doubted or ignored.

So, how likely is Phi Kappa Psi to win in a lawsuit against Rolling Stone?

Phi Kappa Psi would presumably file suit in Virginia, where the non-existent events supposedly took place. The definition of defamation in Virginia involves publication of an actionable statement with requisite fault on the part of the defendant. Each element of this definition requires further definition. “Actionable,” according to the Digital Media Law Project, means that the statement must be false and harm the plaintiff’s reputation. Virginia also recognizes the concept of defamation per se: defamation by the very nature of the claim. That category includes accusations of criminality that could result in indictment and punishment.

Phi Kappa Psi would, for purposes of defamation, be considered a public figure. That means that the fraternity would have to show not just negligence but malice. Malice is generally defined as reckless disregard for truth or knowledge that the statements were false. It would be difficult to claim that Erdely knew the statements were false – but when it comes to recklessness, it is difficult to imagine a more reckless story. The editors and writer of the story themselves are the sources for their reckless disregard of the truth. Here’s Woods:

Ultimately, we were too deferential to our rape victim; we honored too many of her requests in our reporting. We should have been much tougher, and in not doing that, we maybe did her a disservice.

Did her a disservice? What about those she slandered?

Then there’s Erdely herself:

If this story was going to be about Jackie, I can’t think of many things that we would have been able to do differently. … Maybe the discussion should not have been so much about how to accommodate her but should have been about whether she would be in this story at all.

The story, in other words, was too good to check. And so Erdely went out of her way not to check the story. When she finally asked Phi Kappa Psi for comment, according to the Columbia Journalism Review, she did so by cutting short the narration of the allegations:

She did not reveal Jackie’s account of the date of the attack. She did not reveal that Jackie said Phi Kappa Psi had hosted a “date function” that night, that prospective pledges were present or that the man who allegedly orchestrated the attack was a Phi Kappa Psi member who was also a lifeguard at the university aquatic center. Jackie had made no request that she refrain from providing such details to the fraternity.

The president of Phi Kappa Psi’s local chapter, Stephen Scipione, later said, “It was complete bullshit. They weren’t telling me what they were going to write about. They weren’t telling me any dates or details.”

The Columbia Journalism Review report, while overwhelmingly sympathetic to the emotional attraction felt by Erdely in reporting the false story, demonstrates conclusively that recklessness lay at the heart of the story. That will be difficult for Rolling Stone to disprove.